Unseen Policies: Trump’s Little-known Immigration Rules as Executive Power Grab

UNSEEN POLICIES: TRUMP’S LITTLE-KNOWN

IMMIGRATION RULES AS EXECUTIVE

POWER GRAB

JACLYN KELLEY-WIDMER*

ABSTRACT

Throughout the Trump presidency, immigration “horror stories” riveted

Americans and people across the globe. Over the past four years, splashy

headlines highlighted the United States government’s dehumanization and

penalization of immigrants, from travel bans, to family separation, to the

Wall. These stories not only captured public attention but also masked less

sensational yet unjust executive rules that allowed the Trump administration

to overhaul the immigration landscape and maximize executive power with-

out changing a single immigration statute. Unseen policies of expanded

enforcement, partisan immigration court controls, strategic administrative

precedents, and tightened regulations have all been part of the Trump admin-

istration’s complex web of practical and legal barriers for immigrants.

This Article argues that President Trump and his administration have suc-

cessfully exploited the power delegated to the executive branch, in part, by

advancing policies that are out of the public’s view and which require the

exercise of delegated powers at unprecedented levels. Within the humanitar-

ian, enforcement, and bureaucratic realms, the Administration’s “unseen

policies” impacted the day-to-day lives of immigrants, transformed the oper-

ation of our immigration system, and undermined the rule of law. This Article

explores the detrimental impact of under-the-radar executive changes in

these categories and offers broad solutions. Ultimately, to return to the rule

of law and establish a humane immigration system, lawyers and policy

makers from the Biden administration, and beyond, must identify and strate-

gize around these quotidian, unseen policies as well as the well-known

challenges.

* Associate Clinical Professor of Law, Cornell Law School. J.D. University of Michigan Law

School; B.A. Ithaca College. I wish to thank my generous colleagues and mentors who gave me valuable

insight on this project: Briana Beltran, Jeffrey Chase, Bill Ong Hing, Beth Lyon, Estelle McKee, Stephen

Yale-Loehr, Shoba Sivaprasad Wadhia, and Alisa Whitf‌ield. A huge thank you also to Irene Xu for excel-

lent and dedicated research assistance. Gratitude also to my clients, who inspire and motivate me. All

errors are my own. © 2021, Jaclyn Kelley-Widmer.

801

TABLE OF CONTENTS

INTRODUCTION ......................................... 802

I. A THEORY OF UNSEEN POLICIES ......................... 806

II. HUMANITARIAN UNSEEN POLICIES . . . . . . . . . . . . . . . . . . . . . . . . 809

A. Refugee Caps and Asylum Restrictions . . . . . . . . . . . . . . . 809

B. Special Immigrant Juveniles ...................... 814

C. DACA and TPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 816

D. Humanitarian Reforms. . . . . . . . . . . . . . . . . . . . . . . . . . 819

III. BUREAUCRATIC UNSEEN POLICIES ........................ 821

A. Bureaucratic Hassles: Paperwork, Payments, Printing. . . 821

B. Public Charge: The Wealth Test . . . . . . . . . . . . . . . . . . . 824

C. Skilled Worker Visa Restrictions................... 826

D. Reform for Damaging Administrative Policies . . . . . . . . . 827

IV. UNSEEN ENFORCEMENT AND DEPORTATION POLICIES ............ 828

A. Enforcement Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . 829

B. Expanded Expedited Removal . . . . . . . . . . . . . . . . . . . . . 832

C. Reform for Enforcement ......................... 834

V. UNSEEN CHANGES TO IMMIGRATION COURT ADJUDICATION ........ 835

A. Partisan Appointments to Immigration Courts and the

Board of Immigration Appeals ..................... 836

B. Limiting Immigration Judge Power. . . . . . . . . . . . . . . . . 839

C. Reform for Immigration Courts.................... 841

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 841

INTRODUCTION

A tiny toddler clad in a bright-pink shirt and matching sneakers stares up at

her mother, a look of terror across her face. Most of her mother’s body is

blocked by the frame of a border patrol agent administering a pat-down. The

802 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:801

girl is crying, scared, her face illuminated by the lights of patrol cars shining

on her that night at the United States-Mexico border.

Perhaps you, too, remember this haunting, heart-wrenching photograph

1

that went viral in the summer of 2018 and symbolized the Trump administra-

tion’s “zero tolerance” family separation policy. The girl and her mother

were Honduran asylum-seekers who crossed the Rio Grande near McAllen,

Texas, in June 2018.

2

At the time, the Administration was separating thou-

sands of children from their parents after they crossed the border,

3

executing

a policy crafted to deter asylum-seekers.

4

This family separation provoked

outrage from both sides of the aisle

5

and censure from international bodies.

6

Although the policy off‌icially ended

7

after enormous public outcry, families

and their advocates still suffer the impacts today.

8

However, what the photo of the little girl in the pink shirt failed to capture

was the intricate web of executive policies that the child and her parent would

have to navigate on their quest for asylum and the vast array of additional

administrative hurdles enacted later.

9

The photo also could not express the si-

multaneous, unseen executive changes limiting relief for other vulnerable

immigrants. For example, that very same spring, the Trump administration

quietly reinterpreted the legal provisions for Special Immigrant Juvenile

1. Lulu Garcia-Navarro, ‘It Was Hard to Take These Pictures, Knowing What Was Coming Next,’

NPR NEWS (June 17, 2018, 8:12 AM), https://www.npr.org/sections/pictureshow/2018/06/17/620775153/a-

photojournalist-at-the-border (interview with photographer John Moore of Getty Images).

2. John Moore (@jbmoorephoto), INSTAGRAM (June 13, 2018), https://www.instagram.com/p/Bj-

Us3Fn_IS/?utm_source=ig_embed.

3. See Camila Domonoske & Richard Gonzales, What We Know: Family Separation and ‘Zero

Tolerance’ at the Border, NPR NEWS (June 19, 2018), https://www.npr.org/2018/06/19/621065383/what-

we-know-family-separation-and-zero-tolerance-at-the-border.

4. Julia Ainsley & John Soboroff, Trump Cabinet Off‌icials Voted in 2018 White House Meeting to

Separate Migrant Children, Say Off‌icials, NBC NEWS (Aug. 20, 2020, 3:15 PM), https://www.nbcnews.com/

politics/immigration/trump-cabinet-off‌icials-voted-2018-white-house-meeting-separate-migrant-n1237416

(stating that the “separation of families [was] not as an unfortunate byproduct but as a tool to deter more

immigration.”); Richard Gonzales, Sessions Says ‘Zero Tolerance’ for Illegal Border Crossers, Vows to

Divide Families, NPR NEWS (May 7, 2018, 8:17 PM), https://www.npr.org/sections/thetwo-way/2018/05/

07/609225537/sessions-says-zero-tolerance-for-illegal-border-crossers-vows-to-divide-families; see generally

Stephen Lee, Family Separation as Slow Death, 119 COLUM. L. REV. 2319 (2019).

5. David Smith & Tom Phillips, Child Separations: Trump Faces Extreme Backlash from Public and

His Own Party, GUARDIAN (June 19, 2018, 14:23 EDT), https://www.theguardian.com/us-news/2018/jun/

19/child-separation-camps-trump-border-policy-backlash-republicans.

6. UN Off‌ice Calls on US to Stop Separating Families at Border, AP NEWS (June 5, 2018), https://

apnews.com/article/133271c91ef746bc83a43ba8e31aad1d.

7. Affording Congress an Opportunity to Address Family Separation, Exec. Order No. 13,841, 83

Fed. Reg. 29,435 (June 25, 2018).

8. See, e.g., Caitlin Dickerson, Parents of 545 Children Separated at the Border Cannot Be Found,

N.Y. TIMES, (Oct. 20, 2020), https://www.nytimes.com/2020/10/21/us/migrant-children-separated.html?

smid=tw-share (discussing ongoing separation of families); Caitlin Dickerson, Migrant Children are

Being Expelled to Mexico, N.Y. TIMES (Oct. 30, 2020), https://www.nytimes.com/2020/10/30/us/

migrant-children-expulsions-mexico.html?action=click&module=Top%20Stories&pgtype=Homepage

(discussing removal of Central American children to Mexico).

9. See generally Lindsay M. Harris, Asylum Under Attack, 67 LOY. L. REV. 1 (2020) (explaining

many of Trump’s asylum restrictions in detail).

2021] UNSEEN POLICIES: TRUMP’S IMMIGRATION POWER GRAB 803